Buchli v. State

• Decision Date: 13 November 2007
• Docket Number: No. WD 67269.,WD 67269.
• Citation: 242 S.W.3d 449
• Parties: Richard BUCHLI II, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

242 S.W.3d 449

Richard BUCHLI II, Respondent, v. STATE of Missouri, Appellant.

No. WD 67269.

Missouri Court of Appeals, Western District.

November 13, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 18, 2007.

Application for Transfer to Denied January 22, 2008.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang, Victor J. Melenbrink, Office of Atty. Gen., Jefferson City, for Appellant.

Robert Gould, Richard Wayne Johnson, Kansas City, for Respondent.

PAUL M. SPINDEN, Judge.

The State appeals the circuit court's judgment to grant the post-conviction motion of Richard Buchli II. In his motion, filed pursuant to Rule 29.15, Buchli asked the circuit court to vacate the judgment and sentence of his conviction for first-degree murder and armed criminal action. He alleged that the State failed to disclose numerous pieces of exculpatory evidence in violation of constitutional guarantees recognized by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The motion also alleged numerous claims of ineffective assistance of counsel. In granting his amended motion, the circuit court concluded that the State was guilty of two separate Brady violations and found six bases for declaring that Buchli's trial attorney's representation had been ineffective. Any one of these eight reasons would be sufficient to grant Buchli a new trial. Because we conclude that the circuit court did not err in granting Buchli's motion on the basis that the State did not disclose Exhibit 134, a video tape that contained exculpatory evidence, we affirm the circuit court's judgment without reaching the other seven points.

Before considering the merits of the State's claim, we consider Buchli's request to dismiss the State's brief on the ground that it "did not comply with Rule 84.04(c). Buchli complains that, contrary to the rule's requirement of "a fair and concise statement of the facts," the State's statement of facts did not go into sufficient enough detail regarding the hearing of his Rule 29.15 motion. We disagree. The State's statement of fact was sufficient to provide us with an immediate, complete and unbiased account of the facts of the case. We, therefore, deny Buchli's request.

A jury convicted Buchli of first-degree murder and armed criminal action in connection with the May 5, 2000, beating death of Richard Armitage, Buchli's law practice partner. We set out the details of the incident in State v. Buehli, 152 S.W.3d 289 (Mo.App.2004), and, therefore, state only the facts relevant to Buchli's Brady challenge. We note, however, one discrepancy in our previous recitation of facts. In our earlier opinion, we said that telephone records indicated that Armitage was engaged in a telephone conversation immediately before his death from 1:42 P.M. until 2:01 P.M. In this appeal, the State and Buchli agree that telephone records established that he was on the phone for a minute longer—until 2:02:05 P.M. The amount of time that Armitage was on the telephone was crucial in this case because other evidence established that Buchli left the building at some time between 2:06 to 2:16 P.M. As Buchli argued in his direct. appeal:

Mr. Buchli [would have] had only four to nine minutes to beat his law partner nine times, ensure that there was no blood on his clothing, secrete the murder weapon in his briefcase (as argued by the state) without getting blood inside the briefcase compose himself well enough to ride down [from the thirteenth floor] on the elevator, where he might meet other tenants of the building, casually walk through the parking lot to his Jeep, and then drive away without arousing suspicion.

Buchli, 152 S.W.3d at 296-97.

In this appeal Buchli complains that, before trial, the State did not disclose Exhibit 134. This exhibit was a building surveillance video tape made on the day of the murder between 6:49 A.M. to 5:39:50 P.M. The State did turn over a portion of the tape: the recording from 1:13 P.M. to 2:39 P.M.

At trial, the State had used the video tape's time stamp to try to expand the window of opportunity that Buchli had to commit the crime and to leave the scene. The State called as a witness Paul Hoglen, the building's engineer, who testified that he saw Buchli leave the building at 2:10 P.M. The State also called Detective Mark Woods who testified that, on May 17, 2000, 12 days after the murder, the time stamp on the recording device was three minutes behind the time indicated on his pager. The State also introduced the dispatch sheets from Metropolitan Ambulance Services Trust (MAST) on which were recorded the time when emergency personnel entered the building in response to emergency calls concerning Armitage. The MAST time varied three to four minutes from the time stamp on the surveillance video.

Buchli filed a Rule 29.15 motion, which the circuit court granted. In its order, the circuit court listed numerous reasons why Exhibit 134 was exculpatory and material. It noted that, when Detective Woods retrieved the tape at 5:40 P.M., the time stamp on the tape indicated 5:39:50 P.M. This fact, the circuit court concluded, would have established that the time stamp was accurate and would have cast doubt on the State's alternative timeline theory. The State asserts that the circuit court clearly erred in making this conclusion.

Before we consider the merits of the circuit court's order on this issue, we must address the State's contention that the circuit court should have ignored this issue because Buchli did not present it in his amended motion. The State relies on Rule 29.15(d), which says:

The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.

The State concedes that Buchli raised a Brady type claim in his amended motion regarding Exhibit 134, but it maintains that he limited his claim to an allegation that Exhibit 134 was exculpatory and material in that it shows (1) when he arrived to work on the day of the murder, and (2) Paul Hoglen leaving the building before Buchli's return after leaving shortly after 2 P.M. The State argues that the circuit court did not have jurisdiction to enter an order finding that Exhibit 134 was exculpatory and material on the basis that it would have cast doubt on the State's timeline theory. We disagree.

In a section entitled, "Brady Violations: Prosecution's failure to Disclose Exculpatory Evidence of (1) the Complete and Unaltered Surveillance Video ...," Buchli's motion alleged:

An Order from this Court vacating defendant's convictions is also warranted because the prosecution withheld exculpatory evidence that could have been used to impeach Paul Hoglen, thereby misleading the jury and could have further compromised the prosecution's timeline or conclusively proven that Mr. Armitage was alive and well when Mr. Buchli walked out of the building . . . . The prosecution's suppression of this exculpatory evidence violated Mr. Buchli's constitutional rights . . . in that the suppressed evidence would discredit the prosecution's timeline, would have corroborated Mr. Buchli's testimony on issues of credibility and could have led to evidence proving Mr. Buchli's innocence.¹

The amended motion also alleged:

[S]uppression of the original video tape allowed the prosecution to hide the truth about Mr. Hoglen's activities, to make material misrepresentations about Paul Hoglen's activities throughout the trial and, conceal Mr. Hoglen's perjury about what he was doing, where he was and what he observed on May 5, 2000.

In another section, Buchli's motion outlined facts supporting his conclusion that Hoglen was lying about the time when he left the building and alleged:

At trial, Paul Hoglen testified at trial that he was sitting in his truck parked in the alley near the loading dock ... when he saw Mr. Buchli leave the building at 2:10 p.m., according to the clock in his truck.... Mr. Buchli has always maintained that Mr. Hoglen was not present when he left the building or when he returned[.] . . . It has now been established that even a cursory review of the original surveillance videotape proves, on its face, that Paul Hoglen was, in fact, lying.

These allegations preserved Buchli's claim that Exhibit 134 was exculpatory because it cast doubt on the State's timeline theory. Although the motion did not mention Detective Woods and his confirmation of the time stamp's accuracy when he retrieved the tape, the State cites no authority—nor do we find any—that Buchli was obligated to recite in his motion every fact underlying his claim. Instead, it cites Doyle v. Crane, 200 S.W.3d 581, 590 (Mo.App.2006), and State ex rel. Harvey v. Wells, 955 S.W.2d 546, 547 (Mo. banc 1997), in support of the proposition`that Missouri is a fact pleading state.

Of course, the State is correct that, in the context of civil trials, Missouri is a fact-pleading state. Doyle and Harvey, however, do not stand for the proposition that a motion filed pursuant to Rule 29.15 must allege every fact underlying a claim. Rather, the law in Missouri is that the motion must make more than a general allegation that a Brady type violation occurred, and it must allege facts, not conclusions, supporting this claim. State v. Ferguson, 20 S.W.3d 485, "503 (Mo. banc 2000).

Buchli adequately preserved his claim. The circuit court had jurisdiction to enter its order.

Concerning the merits of its claim about Exhibit 134, the State asserts that the circuit court erred because Exhibit 134 was not material. Under Brady, the State has a broad duty "to disclose evidence in its possession that is favorable to the accused and...